[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15722 February 1, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-22383-CV-JLK
JOSE RAFAEL DEPRADO,
Plaintiff-Appellant,
versus
CITY OF MIAMI,
a municipality, Manny Diaz, Mayor,
RAUL MARTINEZ,
Defendants-Appellees,
MARILYN GONZALEZ,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 1, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Miami city police officer Jose Rafael Deprado appeals from the district
court’s entry of final summary judgment in favor of his employer, the City of
Miami, and the former chief of police, Raul Martinez, (collectively, the “City”), on
Deprado’s claim for damages under 42 U.S.C. § 1983 that his First Amendment
right to speak on a matter of public concern was violated. Deprado alleged that
after he testified before a federal grand jury about police misconduct involving
evidence tampering, the City retaliated by transferring him to a different unit,
docking him ten hours of earned vacation pay, and reprimanding him. On appeal,
Deprado challenges the district court’s conclusions that: (1) he did not engage in
protected speech; (2) his transfer did not amount to an adverse action; and (3) the
City would have taken the same actions even without his protected speech. After
thorough review of this record, we affirm.
We review grants of summary judgment de novo. Durruthy v. Pastor, 351
F.3d 1080, 1084 (11th Cir. 2003). Summary judgment is proper when the evidence
shows “that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
resolve all reasonable doubts and make all justifiable inferences in the
non-movant’s favor. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
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2000).
Under First Amendment jurisprudence, the City, as a government employer,
may not retaliate against Deprado, its employee, for engaging in protected speech.
Johnson v. Clifton, 74 F.3d 1087, 1092 (11th Cir. 1996) (citing Bryson v. City of
Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989)). Retaliation occurs when a
government employer “takes an adverse employment action that is likely to chill
the exercise of constitutionally protected speech.” Stavropoulos v. Firestone, 361
F.3d 610, 618 (11th Cir. 2004). Where the employer denies that the employee was
retaliated against in violation of his First Amendment rights, we engage in a
four-stage analysis: “(1) the employee’s speech must involve a matter of public
concern in order for it to be protected, (2) the employee’s first amendment interests
must outweigh the public employer’s interest in efficiency . . . , (3) the employee
must have been disciplined, in substantial part, because of the protected speech,
and (4) the public employer must not be able to prove by a preponderance of the
evidence that it would have disciplined the employee even without the protected
speech.” Johnson, 74 F.3d at 1092 (citing Bryson, 888 F.2d at 1565-66); see also
Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 1957 (2006).
Because Deprado must satisfy all four parts of this test to recover, we need
not reach the difficult questions of whether his speech was protected, nor whether
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his First Amendment interests outweighed the public employer’s interests. See
Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1086 (11th Cir. 1996)
(addressing only last prong of test because it was dispositive for purposes of
affirming summary judgment ruling). Instead, we need address only whether the
City would have engaged in the alleged retaliation, if any, even without the
protected speech.
Deprado specifically claimed that because of his protected speech, he
suffered three adverse actions: a reprimand, a loss of ten hours of leave-time, and a
transfer from the Training Unit to the Patrol Unit. The City, in response, argued
that its actions were explained fully by the following undisputed facts. On June 6,
2001, when Deprado was assigned to the Training Unit, he took part in a “practical
joke.” Specifically, Deprado was doing pull-ups in the Training Center’s gym,
when two other officers sent in a recruit under the guise that Deprado needed to
speak to him; when the recruit arrived, Deprado was totally nude from the waist
down. This “practical joke” violated Departmental Orders, as Deprado agrees.
Following the practical joke, a disciplinary package was prepared recommending
that all three officers involved receive written reprimands and forfeit ten hours of
leave time. Deprado was also transferred out of the Training Unit to the Patrol
Unit. The two other officers involved remained fully clothed at all times and were
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not transferred.
Based on this record, the City contended it could prove overwhelmingly that
it would have disciplined Deprado even without the protected speech. Deprado has
raised no genuine issue of material fact as to this matter. Indeed, Deprado
presented no evidence to dispute that all three officers engaged in the prank
received a written reprimand and ten-hour forfeiture. He did not dispute that the
other two officers were reprimanded; and he even conceded that “practical jokes
[are] technically in violation of departmental orders.” Thus, there is no record
evidence to dispute that Deprado “would have been disciplined [with the
reprimand and forfeiture] regardless of engaging in any free speech, and . . .
produced no convincing evidence from which a reasonable jury could conclude
that the [City] acted outside of its discretion as an employer in its punishment.”
Natale v. Broward County, 987 F. Supp. 926, 937 (S.D. Fla. 1997); see also Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977).
As for the transfer, Deprado also presented no evidence to dispute that the
City would have transferred him even without his speech, since only he, among the
officers, removed his pants during the prank. Deprado did conclusorily assert that
practical jokes “are common in the Training Unit and no one has ever been
disciplined for participating in them prior to this incident and there were no
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warnings that practical jokes would not be permitted in the Training Unit.” But
besides offering this general allegation -- which is insufficient to defeat summary
judgment, see Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1217 (11th Cir.
2000) -- Deprado presented no evidence of other practical jokes nor other practical
jokesters who had not been disciplined.
Deprado also alleged that his supervisor, Lt. Gonzalez, said she hated
“snitches” and wanted to fire him, but Deprado did not dispute the evidence that
Gonzalez was not involved in the decision to transfer him. Put simply, Deprado
produced no convincing evidence from which a reasonable jury could conclude
that the City acted outside of its discretion in transferring him, and him alone, for
staging a practical joke in which only he was nude from the waist down in front of
a recruit.
But, even if the City could not conclusively establish that it would have
transferred him without his protected speech, the transfer still did not amount to an
adverse action. “To be considered an adverse employment action in a First
Amendment retaliation case, the complained-of action must involve an important
condition of employment,” such that the alleged action would likely chill the
exercise of constitutionally protected speech. Stavropoulos, 361 F.3d at 619. Any
conduct that “alters the employee’s compensation, terms, conditions, or privileges
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of employment, deprives him or her of employment opportunities, or adversely
affects his or her status as an employee” is an adverse employment action. Gupta
v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (quotation marks and
citation omitted).1
Deprado claimed that the transfer made him ineligible for a 2% incentive
pay, lowered his prestige, and deprived him of travel opportunities and priority to
attend continuing education courses to improve his status as an employee and his
desirability to prospective employers after retirement. But, as for the 2% incentive
pay, Deprado admitted that the supplement was not instituted until six months after
his transfer. While “specific future harm” may be an adverse action, future harm
that is wholly unforeseen cannot be actionable, since neither Deprado nor the City
could have known at the time of the transfer that Deprado would be deprived of
this 2% supplement, and, plainly, the deprivation of a not-yet-existent supplement
could not have chilled the exercise of constitutionally protected speech.
As for Deprado’s claimed loss of prestige, Burlington recognized an adverse
action where a plaintiff’s prior job was more “prestigious.” 126 S. Ct. at 2417.
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We have held that courts may apply the Title VII definition of adverse employment
action to free speech retaliation claims. Stavropoulos, 361 F.3d at 619. The Supreme Court has
recently extended the scope of adverse employment actions, in Title VII, “beyond workplace-related
or employment-related retaliatory acts and harm,” so that an employee need only show that “a
reasonable employee would have found the challenged action materially adverse.” Burlington N.
& Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414-15 (2006). But Burlington has little bearing
here since Deprado did not allege any non-employment-related adverse actions.
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However, unlike the facts presented in Burlington, Deprado offered no evidence
that the Patrol Unit job was more arduous or required more qualifications, or that
anyone besides him objectively considered it a better job. This Court has held in
the Title VII context:
Congress simply did not intend for Title VII to be implicated where so
comparatively little is at stake . . . . [That he felt] some blow to his
professional image when he was removed as OIC . . . simply [is] not
enough to prevail on this record . . . . In the vast majority of instances
. . . we think an employee alleging a loss of prestige on account of a
change in work assignments, without any tangible harm, will be
outside the protection afforded by Congress . . . .
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1240-45 (11th Cir. 2001); see
also Burlington, 126 S. Ct. at 2415 (“We speak of material adversity because we
believe it is important to separate significant from trivial harms . . . . We refer to
reactions of a reasonable employee because we believe that the provision’s
standard for judging harm must be objective.”) (emphases in original).
Finally, as for his loss of educational and travel opportunities, Deprado
presented no evidence of any specific opportunities he lost, nor that he sought and
was denied any opportunities. Deprado had 16 years of service in the Training
Unit, and presumably acquired experience during that time that would make him
eligible for future positions, both within the department and elsewhere. In
addition, Deprado admitted that he is fully eligible for promotional opportunities in
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the Patrol Unit, and in fact, has received three salary increases since transferring.
Accordingly, “this claim of harm is made only at the highest order of abstraction,”
Davis, 245 F.3d at 1245, and plainly does not establish an adverse action.
In short, Deprado raised no genuine issue of material fact as to the City’s
showing that his transfer did not amount to an adverse action, nor did he satisfy all
four prongs of the First Amendment retaliation test. Accordingly, we affirm.
AFFIRMED.
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